South African Institute for Drug Free Sport Act, 1997
R 385
Construction Industry Development Board Act, 2000 (Act No. 38 of 2000)RegulationsConstruction Industry Development Regulations, 2004Part IV : Invitation, Award and Management of Construction Works Contracts25. Invitation of tender or expression of interest for construction works contracts |
| (1) | Subject to subregulation (1A), in soliciting a tender offer or an expression of interest for a construction works contract, a client or employer must stipulate that only submissions of tender offers or expressions of interest by contractors who are registered in the category of registration required in terms of subregulation (3) or higher, may be evaluated in relation to that contract. |
[Regulation 25(1) substituted by regulation 20(a) of Notice No. 1224 dated 14 November 2008]
| (1A) | Notwithstanding subregulation (1), the tender offer or expression of interest of a contractor who is not registered as contemplated that sub-regulation, but who is capable of being so registered prior to the evaluation of those submissions may be evaluated, but in the case of expressions of interest, the contractor concerned must be capable of being so registered within 21 working days after the closing date for those submissions. |
| (1B) | Where a contract involves construction works over an agreed number of years - |
| (a) | on an "as and when required" basis; |
| (b) | of a routine nature; or |
| (c) | grouped into identifiable and similar components where an instruction to proceed to the construction of the next component is conditional on the successful completion of the previous component, |
the value of that contract may for the purpose of sub-regulation (1), be taken at its annual value.
| (2) | Despite subregulation (1A), a client or employer, under extreme conditions, is entitled to determine that only submissions of tender offers or expressions of interest by contractors who are already registered in terms of these Regulations will be evaluated and for the purpose of this regulation, "extreme conditions" mean conditions where— |
| (a) | human injury or death; |
| (b) | human suffering or deprivation of human rights; |
| (c) | serious damage to property or financial loss; |
| (d) | injury, suffering or death to livestock or other animals; |
| (e) | serious environmental damage or degradation; or |
| (f) | interruption of essential services, |
is present or imminent.
| (3) | The category of registration for contractors whose submissions of tender offers or expressions of interest qualify to be evaluated in terms of subregulation (1), is – |
| (a) | a contractor grading designation not lower than that derived from— |
| (i) | the selection of a single class of construction work that best describes the construction works contract for which tender offers or expressions of interest is invited, or the broad technical capabilities required of the contractor; provided that if more than one class of works equally describes the construction work for which tender offers are invited, then an alternative class of work may also be selected in terms of this paragraph, but not more than two classes of work may be so selected; and |
| (ii) | the identification of the tender value range based on the estimated tender value where expressions of interest are called for or tenders are advertised and the tendered price where tenders are evaluated, and where that estimate is within 20 percent of the lower limit of that tender value range, the tender value range immediately below that tender; and |
| (b) | from a date determined by the Minister in the Gazette, the recognition status in terms of a best practice contractor recognition scheme in relation to the capabilities of the contractor concerned but if a requirement in terms of this paragraph is set, it must be justifiable in respect of the quality of the procurement. |
| (4) | The solicitation referred to in subregulation (1) must specify the lowest category of registration as contemplated in subregulation (1), and determined in accordance with subregulation (3), required for the construction works contract contemplated in subregulation (1). |
| (5) | Subject to subregulation (1), joint ventures are eligible to submit tender offers or expressions of interest if— |
| (a) | every member of the joint venture is a registered contractor in terms of these Regulations and the lead partner has a contractor grading designation in the class of construction works under consideration and possesses the required recognition status; and |
| (b) | the category of registration of the joint venture, determined in accordance with sub-regulation (6) is equal to or higher than the category of registration specified in accordance with sub-regulation (3). |
| (6) | The contractor grading designation for a joint venture is determined either in accordance with table 9 or in accordance with regulation 11 but is calculated based on— |
| (a) | the sum of the annual turnover of all the members to the joint venture; |
| (b) | the sum of the available capital of all the members to the joint venture; and |
| (c) | the total number of equivalent full-time qualified persons in the construction works category in which the joint venture wishes to be registered, |
but where—
| (i) | a contractor is graded solely on the basis of available capital, that contractor is deemed to have an annual average turnover equal to the values set out in columns 3 and 4 of Table 1 in regulation 12(1) in relation to his or her contractor grading designation; and |
| (ii) | a contractor is registered in grading designation of 3 or 4, the actual values that were used for the parameters that were assessed and notional values must be assigned to the parameters referred to in paragraphs (a) to (c) that the contractor was not assessed on, in accordance with the following formula: |
Notional value for parameter not assessed = 
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where :
A = value accepted Board for available capital/annual average turnover/contract value to determine the capability of a contractor;
B = minimum of average available capital/average turnover, corresponding to A, required to determine the capability of a contractor in the contractor grading designation in which the contractor is registered [see table 1 in regulation 12(1)];
C = minimum value average annual available capital/average turnover, corresponding to A, required to determine the capability of a contractor in one contractor grading designation higher than the one in which the contractor is registered [see table 1 in regulation 12(1)];
D = minimum value of average annual capital/average turnover/contract value, corresponding to the parameter being assessed, required to determine the capability of a contractor in the contractor grading designation in which the contractor is registered [see table 1 in regulation 12(1)];
E = minimum value of average annual employable capital/average turnover/contract value, corresponding to the parameter being assessed, required to determine the capability of a contractor in one contractor grading designation higher than the one in which the contractor is registered in [see table 1 in regulation 12(1)].
TABLE 9
|
Designation |
Deemed to satisfy joint venture arrangements |
|
3 |
Three contractors registered in contractor grading designation 2 |
|
4 |
Three contractors registered in contractor grading designation 3 |
|
5 |
Two contractors registered in contractor grading designation 4 One contractor registered in contractor grading designation 4 and two contractors registered in contractor grading designation 3 |
|
6 |
Two contractors registered in contractor grading designation 5 One contractor registered in contractor grading designation 5 and two contractors registered in contractor grading designation 4 |
|
7 |
Two contractors registered in contractor grading designation 6 One contractor registered in contractor grading designation 6 and two contractors registered in contractor grading designation 5 |
|
8 |
Three contractors registered in contractor grading designation 7 |
|
9 |
Three contractors registered in contractor grading designation 8 |
[Regulation 25(6) substituted by regulation 19(c) of Notice No. 1224 dated 14 November 2008]
| (7) | On receipt of tender offers, the employer must, based on a reasonable derivation from those tender offers, determine the final lowest category of registration required for the evaluation of those offers. |
| (7A) | An organ of state may subject to its procurement policy and notwithstanding anything to the contrary contained in this regulation, evaluate and award a tender offer from a tenderer who is registered but who tendered outside of his or her tender value range as contemplated in regulation 17, provided that— |
| (a) | the margin with which the tenderer exceeded his or her tender value range contemplated in regulation 17, is reasonable; |
| (b) | the award of the contract does not pose undue risk to the organ of state; |
| (c) | the tender offer in all other aspects comply with these Regulations; and |
| (d) | the report referred to in regulation 21 or 38(5)and (6), indicates whether this sub-regulation was applied in the award of the tender. |
| (8) | Within the framework of a targeted development programme promoted by a client or employer, that client or employer may accept for evaluation tender offers or expressions of interest by a contractor who is registered as a potentially emerging enterprise in terms of these Regulations at a contractor grading designation, one level higher than the contractor's registered grading designation, if that client or employer— |
| (a) | is satisfied that such a contractor has the potential to develop and qualify to be registered in that higher grade; and |
| (b) | ensures that financial, management or other support is provided to that contractor to enable the contractor to successfully execute that contract. |
| (9) | An employer must, before awarding a construction works contract, satisfy him or herself that the contractor concerned — |
| (a) | is registered in terms of these Regulations; |
| (b) | is not prohibited in terms of any legislation from submitting tender offers or expressions of interest to an organ of state; and |
| (c) | has demonstrated that— |
| (i) | he or she has the resource capacity and capability specific to the contract concerned; |
| (ii) | his or her capacity to perform the construction works concerned will not be unduly compromised on the award of the contract concerned. |
| (10) | A tender offer received from a contractor that does not satisfy an employer as contemplated in subregulation (7), must be rejected. |
